Administrative Discretion as Dialogue: A Response to John Willis (or: From Theology to Secularization)

I Introduction

For John Willis, discretion was 'a topic which goes to the heart of administrative law,'¹ albeit one he thought was neglected by academics. He viewed discretion as essential to any regulatory scheme: 'the regulator's job is to do something creative – to keep the department of human life entrusted to his supervision running reasonably smoothly – and he cannot create anything if all he has to work with is rigidly preordained "do's" and "don'ts."'² But creativity, or 'the rule of discretion,' was in Willis's view opposed to 'the rule of law':³ for him, therefore, 'the heart of administrative law' beat outside of the legal landscape. Willis was also deeply sceptical of judicial review of administrative discretion (and, in fact, of administration action generally). He regarded such review as a harmful intrusion into the work of the executive. In sum, Willis believed in the necessity of both flexibility and autonomy for the administrative state: the creative job implied in running the government could not be done if regulators were bound by rigid law, or if courts systematically intervened to correct their view of what was required for effective government.⁴

While I share Willis's conviction that discretion is a central feature of administrative law and that the administrative state legitimately deserves some margin of autonomy, I believe that a proper conception of discretion is not incompatible with the rule of law and that judicial review of discretion is not inherently harmful to government. In my view, by focusing on the perspective of the decision maker, and on his power to make the decision that best fits the statutory scheme or to ensure the 'reasonably smooth running' of the department that was entrusted to him, Willis endorsed a view of discretion that neglects precisely those who are subject to the decisions: the individuals in whose interests discretion is supposed to be exercised. I will argue that a better view of discretion is one that builds upon the perspective of the individual and establishes a 'dialogue'⁵ between him and the decision maker. Thus conceived, discretion is compatible with a promising conception of the rule of law and gives courts a role that better serves democratic values without either obstructing or harming the work of government.

To the extent that my arguments express a commitment to citizen participation, democratic values, and the rule of law in every aspect of government activity, my approach to administrative law seems to be, in Willisian terms, 'theology in its purest form.'⁶ Willis used that expression to describe what he viewed as a tendency of courts and academics to fill administrative law with references to fundamental values or 'cults,'⁷ detached from the realities of the concrete world of administrative governance. At first glance, therefore, my arguments would probably appear unconvincing to John Willis.

I think it is plausible to argue that Willis's views on discretion and judicial review of administrative action were no less theological than mine: he simply placed his faith somewhere else, not in fundamental values but in government.⁸ But here I want to explore a different suggestion. In my view, far from expressing a discourse replete with lawyers' abstract values, a conception of discretion as dialogue is deeply connected to the practical affairs of the administrative state: it brings discretion down to the individual, instead of maintaining it in the high spheres of the government machinery, and thus moves away from pure theology. Therefore, a conception of discretion as dialogue favours what might be called, in Willis-like language, the 'secularization' of administrative law. Hence the title of this article.

I present my argument in three steps. First I analyse Willis's view of discretion and suggest that he endorsed a top-down conception of discretion, which I will term 'discretion...